Judgment

DUA, J.: - The State of U. P. has appealed to this Court on certificate of fitness granted by the Allahdbad High Court from that Court s order dated January 18, 1968 acquitting the respondent of an offence punishable under Section 14 of the Foreigners Act (Act No. 31 of 1946). This appeal was originally heard by us on January 11 and l4, 1971, when it was considered desirable to send for the original records of the case from the Courts below and also to call for the file relating to the inquiry held by the Central Government under Section 9 (2) of the citizenship Act (Act No. 57 of 1955) into the question of the acquisition of citizenship of Pakistan by the respondent.

2. On July 11, 1963, the respondent was arrested for overstaying in India as a foreigner and on March 6, 1963, he was charged by the City Magistrate, Varanasi, with the commission of an offence punishable under Section 14 of the Foreigners Act, (Act No. 31 of 1946). The charge reads:

"I, D. S. Sharma City Magistrate, Varanasi hereby charge you Rahmatullah as follows

That you being a Pakistani citizen entered into India on 1-4-55 on Pakistani Passport No. 283772, dated 15-3-55 and Indian Visa No. 16326, Category C, dated 22-3-55 and got your extension to stay in India upto 25-5-56 after which date you are overstaying in India illegally without any passport and visa:

and thereby committed an offence punishable u/s 14 of Foreigners Act within my cognizance,

and hereby I direct you to be tried on the said charge by me."

3. According to the prosecution case against the respondent as put in the Trial Court, he was a Pakistani national and had on April 1, 1955, entered India on a Pakistani passport dated March 15, 1955, and an Indian Visa dated March 22, 1955, obtained by him as a Pakistani national, but even after the expiry of the permitted period he was overstaying in India without a valid passport or visa. The original visa, it is not disputed, expired in June 21, 1955, but it was extended thrice, the last extension being valid only upto May 25, 1956. Therefore the respondent went underground and has since been residing in India illegally. He was traced after several years and was arrested on July 11, 1963. The respondent pleaded in defense that though he had entered India on a Pakistani passport he was not a Pakistani national. On the contrary he claimed to be an Indian citizen and therefore rightfully living in India, According to him he had been born in Indian of Indian parents in 1932 and was an Indian citizen under the Constitution.

4. During the pendency of the present criminal proceedings an inquiry was made by the Central Government under Section 9 (2) of the Citizenship Act read with Rule 30 of the Citizenship Rules, 1956, and by means of an order dated November 5, 1964, it was determined that the responded had acquired citizenship of Pakistan after January, 26, 1950, and before March 15, 1955. March 15, 1955 was apparently fixed, because on that date the respondent had secured his Pakistani passport. In that inquiry the respondent was given full opportunity of adducing proof in support of his plea. The respondent was informed of the determination of the Central Government on March 29, 1965 in the Trial Court.

5. The City Magistrate, Varanasi, trying the case came to the conclusion that the respondent had voluntarily gone to Pakistan and had stayed there for 8 or 9 months. The fact that he had obtained a Pakistani passport was in the opinion of that Court an indication of his intention to have gone to that country with the object of becoming a Pakistani national. The argument that the determination in regard to the respondent s citizenship was made by the Central Government after the commencement of the present proceedings was considered by the Trial Court to be irrelevant because the determination by the Central Government was immune from challenge and whether it was made before or after the framing of the charge was immaterial. The respondent was held to